Citation Nr: 1046049
Decision Date: 12/09/10 Archive Date: 12/20/10
DOCKET NO. 07-04 913 ) DATE
)
)
On appeal from the
Department of Appellants Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for a back disorder.
2. Entitlement to service connection for a right hip disorder,
to include as secondary to a back disorder.
3. Entitlement to service connection for gastritis, to include
as secondary to a back disorder.
4. Entitlement to service connection for ulcers, to include as
secondary to a back disorder.
5. Entitlement to service connection for hemorrhoids, to include
as secondary to a back disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Orfanoudis, Counsel
INTRODUCTION
The Appellant was a member of the United States Army Reserves
from February 1975 to February 1978. During this time, she had
periods of active duty for training (ACDUTRA) from April 5, 1975,
to April 18, 1975, and from June 5, 1977, to June 17, 1977. She
also presumably had periods of inactive duty training (INACDTRA)
during reserve service.
This matter comes before the Board of Appellants' Appeals (Board)
on appeal from March 2005 and June 2006 rating decisions of the
Department of Appellants Affairs (VA), Regional Office (RO), in
Nashville, Tennessee, which, in pertinent part, denied the above
claims.
In May 2008, the Appellant testified at a personal hearing over
which a Decision Review Officer of the RO presided. A transcript
of the hearing has been associated with the Appellant's claims
file.
In November 2008, the Appellant had been scheduled for a personal
hearing over which a Appellants Law Judge of the Board would have
presided while at the RO. However, prior to the date of the
hearing, in November 2008, she withdrew her request for a
hearing.
FINDINGS OF FACT
1. Resolving all reasonable doubt in favor of the Appellant,
coccydinia is manifested as a result of her period of inactive
duty training service (INACDUTRA).
2. A low back disorder, other than coccydinia, is not manifested
as a result of any qualifying periods of active military service,
including ACDUTRA or INACDUTRA, nor is it secondary to a service-
connected disability.
3. The Appellant's right hip disorder is not manifested as a
result of any qualifying periods of active military service,
including ACDUTRA or INACDUTRA, nor is it secondary to a service-
connected disability.
4. The Appellant's gastritis is not manifested as a result of
any qualifying periods of active military service, including
ACDUTRA or INACDUTRA, nor is it secondary to a service-connected
disability.
4. The Appellant's ulcers are not manifested as a result of any
qualifying periods of active military service, including ACDUTRA
or INACDUTRA, nor are they secondary to a service-connected
disability.
5. The Appellant's hemorrhoids are not manifested as a result of
any qualifying periods of active military service, including
ACDUTRA or INACDUTRA, nor are they secondary to a service-
connected disability.
CONCLUSIONS OF LAW
1. The criteria for service connection for coccydinia have been
met. 38 U.S.C.A. §§ 101(24), 1112, 1113, 1131, 1137, 5107 (West
2002 & Supp. 2009); 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.307, 3.309
(2010).
2. The criteria for service connection for a right hip disorder,
to include as
secondary to a back disorder, have not been met. 38 U.S.C.A. §§
101(24), 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.6, 3.303, 3.304, 3.307, 3.309 (2010).
3. The criteria for service connection for gastritis, to include
as secondary to a back disorder, have not been met. 38 U.S.C.A.
§§ 101(24), 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp.
2009); 38 C.F.R. §§3.6, 3.303, 3.304, 3.307, 3.309 (2010).
4. The criteria for service connection for ulcers, to include as
secondary to a back disorder, have not been met. 38 U.S.C.A. §§
101(24), 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.6,3.303, 3.304, 3.307, 3.309 (2010).
5. The criteria for service connection for hemorrhoids, to
include as secondary to a back disorder, have not been met. 38
U.S.C.A. §§ 101(24), 1112, 1113, 1131, 1137, 5107 (West 2002 &
Supp. 2009); 38 C.F.R. §§3.6, 3.303, 3.304, 3.307, 3.309 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
The Appellants Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A.
§§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009),
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), requires
VA to assist a claimant at the time that he or she files a claim
for benefits. As part of this assistance, VA is required to
notify claimants of what they must do to substantiate their
claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).
VA must inform the claimant of any information and evidence not
of record (1) that is necessary to substantiate the claim; (2)
that the claimant is to provide; and (3) that VA will attempt to
obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
Appellant status; (2) existence of a disability; (3) a connection
between the Appellant's service and the disability; (4) degree of
disability; and (5) effective date of the disability. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Specifically, the notice must include notice that a disability
rating and an effective date for the award of benefits will be
assigned if service connection is awarded. Id. at 486.
VCAA notice errors are presumed prejudicial unless VA shows that
the error did not affect the essential fairness of the
adjudication. To overcome the burden of prejudicial error, VA
must show (1) that any defect was cured by actual knowledge on
the part of the claimant; (2) that a reasonable person could be
expected to understand from the notice what was needed; or, (3)
that a benefit could not have been awarded as a matter of law.
See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007).
In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States
Supreme Court (Supreme Court) held that the blanket presumption
of prejudicial error in all cases imposed an unreasonable
evidentiary burden upon VA. Rather, the Supreme Court suggested
that determinations concerning prejudicial error and harmless
error should be made on a case-by-case basis. Id. As such, in
conformance with the precedents set forth above, on appellate
review the Board must consider, on a case-by-case basis, whether
any potential VCAA notice errors are prejudicial to the claimant.
By letters dated in October 2004, April 2005, July 2005, August
2005, September 2005, February 2006, June 2006, March 2007, April
2008, and June 2008 the Appellant was notified of the evidence
not of record that was necessary to substantiate her claims. She
was told what information that she needed to provide, and what
information and evidence that VA would attempt to obtain. Under
these circumstances, the Board finds that the notification
requirements of the VCAA have been satisfied. The foregoing
correspondence also provided the Appellant with the requisite
notice with respect to the Dingess requirements.
Next, the VCAA requires that VA make reasonable efforts to assist
the claimant in obtaining evidence necessary to substantiate a
claim. The Appellant's relevant service, VA, and private medical
treatment records have been obtained. There is no indication of
any additional, relevant records that the RO failed to obtain.
In determining whether the duty to assist requires that a VA
medical examination be provided or medical opinion obtained with
respect to a Appellant's claim for benefits, there are four
factors for consideration.
These four factors are: (1) whether there is competent evidence
of a current disability or persistent or recurrent symptoms of a
disability; (2) whether there is evidence establishing that an
event, injury, or disease occurred in service, or evidence
establishing certain diseases manifesting during an applicable
presumption period; (3) whether there is an indication that the
disability or symptoms may be associated with the Appellant's
service or with another service-connected disability; and (4)
whether there otherwise is sufficient competent medical evidence
of record to make a decision on the claim. See McLendon v.
Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38
C.F.R. § 3.159(c)(4).
With respect to the third factor above, the United States Court
of Appeals for Appellants Claims (Court) has stated that this
element establishes a low threshold and requires only that the
evidence "indicates" that there "may" be a nexus between the
current disability or symptoms and the Appellant's service.
The Appellant has been medically evaluated as to the issue of
service connection for a back disorder. As to the issues of
service connection for a right hip disorder, gastritis, ulcers,
and hemorrhoids, no examination is necessary in order to
adjudicate the Appellant's claims because there is no evidence to
satisfy the second or third McLendon criteria discussed above.
Specifically, there is no evidence to suggest that any disease or
injury occurred during a period of active duty for training or
inactive duty for training, and there is no competent evidence to
suggest that any disorder manifested as a result of the
Appellant's military service. Therefore, a medical examination
would serve no useful purpose in this case, since the requirement
of an in-service disease or injury to establish a service
connection claim cannot be met upon additional examination. The
Appellant has not been prejudiced by the lack of VA examination.
In sum, the Board finds that the duty to assist and duty to
notify provisions of the VCAA have been fulfilled and no further
action is necessary under the mandates of the VCAA.
Service connection
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military, naval, or air service or, if pre-existing such service,
was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. §§ 3.303, 3.304 (2010).
The term "active military, naval, or air service" includes: (1)
active duty; (2) any period of active duty for training during
which the individual concerned was disabled or died from a
disease or injury incurred or aggravated in the line of duty; and
(3) any period of inactive duty for training during which the
individual concerned was disabled or died from an injury incurred
or aggravated in the line of duty or from an acute myocardial
infarction, cardiac arrest, or cerebrovascular accident occurring
during such training. 38 U.S.C.A. § 101(2), (24) (West 2002); 38
C.F.R. § 3.6(a) (2010). Inactive duty for training includes duty
(other than full-time duty) performed by a member of the National
Guard of any State, under 32 U.S.C. §§ 316, 502, 503, 504, or
505, or the prior corresponding provisions of law. 38 C.F.R. §
3.6(d) (4) (2010). Service connection on a presumptive basis is
not available where the only service performed is active duty for
training or inactive duty for training. Biggins v. Derwinski, 1
Vet. App. at 476-78.
In order to prevail on the issue of service connection for any
particular disability, there must be evidence of a current
disability; evidence of in-service occurrence or aggravation of a
disease or injury; and medical evidence, or in certain
circumstances, lay evidence, of a nexus between an in-service
injury or disease and the current disability. See Hickson v.
West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi,
381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581
F.3d 1313, 1316 (Fed. Cir. 2009).
Arthritis and peptic ulcers may be presumed to have been incurred
during active service if they become manifest to a degree of at
least 10 percent within the first year following active service
in the case of any Appellant who served for 90 days or more. 38
U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309
(2010). However, as noted above, presumptive periods do not apply
to active duty for training or inactive duty for training. See
Biggins, 1 Vet. App. at 477-78.
For the showing of chronic disease in service, there is required
a combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "chronic." Continuity
of symptomatology is required only where the condition noted
during service is not, in fact, shown to be chronic, or where the
diagnosis of chronicity may be legitimately questioned. When the
fact of chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support the
claim. 38 C.F.R. § 3.303 (2010).
Service connection may be established on a secondary basis for a
disability that is proximately due to or the result of a service-
connected disease or injury. 38 C.F.R. § 3.310(a) (2010).
Establishing service connection on a secondary basis requires
evidence sufficient to show (1) that a current disability exists
and (2) that the current disability was either (a) caused by or
(b) aggravated by a service-connected disability. 38 C.F.R. §
3.310(a) (2010); Allen v. Brown, 7 Vet. App. 439 (1995) (en
banc).
In addition, service connection may be granted for any disease
diagnosed after service when all the evidence establishes that
the disease was incurred in service. 38 C.F.R. § 3.303(d)
(2010).
The Board must assess the credibility and weight of all the
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for rejecting
any
evidence favorable to the claimant. See Masors v. Derwinski, 2
Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618
(1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert
v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not
accorded to each piece of evidence contained in the record; every
item of evidence does not have the same probative value.
Back disorder
The Appellant asserts that she has a current low back disability
that is etiologically related to her periods of service. During
her May 2008 hearing, she described that during her periods of
service, she had engaged in various strenuous physical activities
requiring a lot of lifting and bending, which resulted in a back
disorder. She also reported an incident in which she slipped on
a banana peel and fell down some stairs injuring her low back.
A review of the Appellant's claims file reveals that service
treatment records from a period of United States Army Reserve
duty from September 1974 are of record. These records are
limited to an enlistment report of medical examination dated in
September 1974 which shows that clinical evaluation of the spine
was normal; and an associated report of medical history showing
that the Appellant indicated that she had never had recurrent
back pain.
However, a service treatment record dated in September 1976 shows
that the Appellant reported falling down some stairs at the
barracks. She reported pain at the tip of the coccyx. There was
no swelling, dislocation, or muscle spasm. X-rays were negative.
A chronological record of medical care dated one day later shows
that the Appellant was diagnosed with a bruised coccyx. The
service personnel records do not reference whether the Appellant
was ordered to INACDUTRA during the time of this injury.
However, in view of the fact that these are service department
records describing a fall that took place in the barracks, the
Board resolves all reasonable doubt in favor of the Appellant as
will assume that the injury the coccyx occurred while she was
assigned to INACDUTRA.
Subsequent to service, a private medical record from B. F. T.,
M.D., dated in March 1995, shows that the Appellant had a three
to four month history of neck and low back pain. She indicated
that her injury was associated with a Workmen's Compensation
claim brought on by heavy lifting at work. The impression was
chronic neck and low back pain.
A private comprehensive psychiatric report from J. R., M.D.,
dated in November 1996 (in conjunction with a claim for
employment disability benefits), shows that the Appellant was
said to have been treated in January 1994, at which time she had
asserted pain in the upper back as a result of her work related
activities as a unit clerk. She added that she did not recall
actual incidents, but that she would walk into file cabinets
several times. It was also noted that in April 1994, she was
said to have myoligamentous strain of the cervical and lumbar
spine, by history. The Appellant also described that sometime
between September 1992 and December 1992, she had been working on
a ladder in an effort to pull down a thick document when she felt
something pull in her upper back and experienced pain in the left
side of her neck, down her back, and into her lower back. She
added that she did not seek treatment for her injury until after
leaving work the following year. She indicated that she later
received physical therapy for her symptoms.
A private psychiatry record from W. K., M.D., dated in November
1996, shows that the Appellant provided a history of chronic pain
which she said started in 1992 when she was lifting something
while standing on a stepladder at work. In pertinent part, she
pointed to her back in describing her pain. She also noted her
history in the Army but did not mention any injury sustained
therein.
A Los Angeles County Employees Retirement Association, Disability
Retirement Evaluation Report, dated in December 1996, shows that
the Appellant, in pertinent part, reported impairment to her
back. In her application for benefits, she described that in
1992, she had been on a step ladder at work putting up cases on a
shelf over her head, and felt a lightning bolt strike from the
neck down to her feet.
Private medical records from R. T., M.D., dated from March 2005
to May 2005, show that the Appellant had neck and shoulder pain
and numbness radiating to both feet following a motor vehicle
accident. She was treated for ongoing back pain.
VA outpatient treatment records dated from March 2005 to July
2005 show that the Appellant was treated intermittently for
symptoms associated with a low back disorder. In March 2005, she
was treated for a reported several year history of low back pain
which would radiate to her right hip and down her right leg. The
assessment was lumbosacral strain, acute on chronic. Later in
March 2005, she was treated following a motor vehicle accident
with a large 18 wheeler in which she had been restrained in the
automobile. She described pain in the cervical spine area.
A lay statement from M. J., the Appellant's daughter, dated in
May 2005, shows, in pertinent part, that she was said to be
experiencing chronic pain from injuries sustained during a fall
down three flights of stairs in 1976 while on active duty.
A letter from R. C. R., Ph.D., dated in October 2005, shows that
the Appellant was said to have been seen from 1995 to 1996 on a
regular basis for severe pain management after she had sustained
an on-the-job injury.
A VA outpatient treatment record dated in December 2005 shows
that the Appellant reported a 30 year history of chronic low back
pain. She described back symptoms since falling down three
flights of stairs in 1976. A magnetic resonance imaging (MRI)
study revealed multilevel degenerative disc disease, but no sign
of foraminal or spinal stenosis.
A letter from a VA physician dated in March 2006 shows that the
Appellant was said to have debilitating back pain and was unable
to work.
Lay statements from E. K. and A. M., friends and former fellow
service members of the Appellant, dated in March 2006, show that
the Appellant was said to have fallen in service, and that her
condition had deteriorated since then.
VA outpatient treatment records dated from March 2006 to March
2007 show that the Appellant was treated intermittently for
symptoms associated with low back pain.
A Statement In Support Of Claim (VA Form 21-4138) dated in
January 2007 shows that the Appellant suggested that she had an
abnormal fracture mend of the coccyx.
A VA spine examination report dated in September 2007 shows that
the Appellant reported a history of falling down some stairs
while in service in 1976 and bruising her coccyx. She described
receiving conservative treatment at that time. She added that
she had experienced persistent back pain since that incident.
The assessment was coccydinia and mild lumbar degenerative disc
disease. The examiner opined that it was less likely as not that
the Appellant's degenerative joint disease of the lumbar spine
was related to her coccyx injury from her fall while in service.
The examiner explained that an injury to the coccyx would not
lead to L5-S1 disc bulging or degenerative joint disease.
VA outpatient treatment records dated from April 2007 to June
2008 show that the Appellant continued to be treated
intermittently for symptoms associated with low back pain.
In determining whether evidence submitted by an appellant is
credible, the Board may consider internal consistency, facial
plausibility, and consistency with other evidence. Caluza v.
Brown, 7 Vet. App. 498, 511 (1995). The Appellant's statements,
along with the various lay statements, that she has proffered
during the course of this appeal as to the fall down stairs
during her inactive duty training, have not been contradictory.
Moreover, while there have been a number of post-service back
injuries unrelated to the inactive duty training coccyx injury,
recitation of the symptoms produced by the fall from stairs, and
how long the condition has been symptomatic, has remained
consistent. The Board finds that this evidence is credible,
probative, and adds weight to the overall claim. See, e.g.,
Struck v. Brown, 9 Vet. App. 145, 155-156 (1996); also Davidson,
581 F.3d at 1316.
Additionally, when a condition may be diagnosed by its unique and
readily identifiable features, the presence of the disorder is
not a determination "medical in nature" and is capable of lay
observation. In such cases, the Board is within its province to
weigh that testimony and to make a credibility determination as
to whether that evidence supports a finding of service incurrence
and continuity of symptomatology sufficient to establish service
connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay
evidence can be competent and sufficient to establish a diagnosis
of a condition when (1) a layperson is competent to identify the
medical condition, (2) the layperson is reporting a
contemporaneous medical diagnosis, or (3) lay testimony
describing symptoms at the time supports a later diagnosis by a
medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.
Cir. 2007).
In this case, the Board finds that the Appellant's lay statements
describing the onset and chronicity of the coccyx injury are
consistent with the service treatment records which show a
diagnosis of a bruised coccyx in September 1976 and with the
September 2007 VA examination report which shows a current
diagnosis of coccydinia. As such, her account as to an injury
during a period of inactive duty training is found to be credible
and supported by the later diagnosis from the VA examiner. Id.
There is no evidence of record that the Appellant had a coccyx
disorder at the time of her September 1974 induction examination.
The service treatment records clearly show that the Appellant had
been diagnosed with a bruised coccyx after a fall down some
stairs during inactive duty training. The Appellant's post-
service records show a current diagnosis of coccydinia.
Coccydinia is pain in the area of the coccyx (tailbone) and
describes a pattern of symptoms or a collection of conditions
which causes chronic inflammation. See Coccyx.org, What is
coccydynia?, www.coccyx.org/whatisit/index.htm (last visited
December 1, 2010).
The Board recognizes that the VA examiner in September 2007
concluded that it was less likely than not that the Appellant's
degenerative joint disease of the lumbar spine was related to her
coccyx injury from her fall while in service. The Board does
not dispute this. The Board finds that the preponderance of the
evidence of record does not, in fact, support the assertion that
the Appellant has a lumbar spine disorder, such as degenerative
disc disease, that is manifested as a result of her periods of
service. However, the Board does find that given the evidence
outlined above, a point of relative equipoise has been reached as
to whether the Appellant currently has coccydinia that is
manifested as a result of her period of inactive duty training in
September 1976. As such, the extent that the Appellant has
coccydinia, the Board finds that the criteria for service
connection have been met.
Further inquiry could be undertaken with a view towards
development of the claim so as to obtain an additional medical
opinion. However, under the benefit of the doubt rule, where
there exists "an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter," the Appellant shall prevail upon
the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also
Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).
Right Hip
The Appellant asserts that she has a current right hip disorder
that is etiologically related to her periods of service. During
her May 2008 hearing, she described that during her period
service, she injured her right hip at the same time that she had
injured her back. She added that she currently needed a right
hip replacement.
A review of the Appellant's September 1974 enlistment report of
medical examination shows that clinical evaluation of the lower
extremities was normal; and the associated report of medical
history shows that she indicated that she had never had
arthritis, rheumatism, bursitis; bone, joint, or other deformity;
or lameness.
The September 1976 service treatment records showing the fall
down some barracks stairs do not show symptoms associated with or
a diagnosis of a right hip disorder.
Subsequent to service, a lay statement from M. J., the
Appellant's daughter, dated in May 2005, shows, in pertinent
part, that she was said to be experiencing chronic pain from
injuries sustained during a fall down three flights of stairs in
1976 while on active duty.
The October 2005 letter from R. C. R., Ph.D., shows that the
Appellant was said to have been seen from 1995 to 1996 on a
regular basis for severe pain management after she had sustained
an on-the-job injury.
The March 2006 lay statements from E. K. and A. M., friends and
former fellow service members of the Appellant, show that the
Appellant was said to have fallen in service, and that her
condition had deteriorated since then.
VA outpatient treatment records dated from April 2006 to January
2008 show that the Appellant was treated intermittently for
symptoms associated with right hip pain. In August 2007, she was
said to have right hip pain with a history of osteoarthritis of
the hip per MRI.
Having carefully considered the competent evidence of record, the
Board finds that the preponderance of the evidence has failed to
demonstrate that the Appellant was ever diagnosed with a right
hip disorder during her periods of service. While there is
evidence of the fall from barrack stairs during inactive duty
training in September 1976, the treatment was limited to a
bruised coccyx, and there is no evidence that the Appellant
sustained an injury to the right hip. The Appellant's available
service treatment records are highly probative as to her
condition at the time of service, as they were generated with the
specific purpose of ascertaining the Appellant's then-physical
condition, as opposed to her current assertion which is proffered
in an attempt to secure VA compensation benefits. Rucker v.
Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal
rules of evidence do not apply before the Board, recourse to the
Federal Rules of Evidence may be appropriate if it assists in the
articulation of the reasons for the Board's decision). These
reports are entirely negative for any symptoms associated with
the right hip and weigh heavily against the claim. The weight of
the service treatment records is greater than subsequent
treatment records based on a history as provided by the
Appellant. As the Appellant only had active duty for training
and inactive duty for training, presumptive service connection is
not available, thus, an analysis of whether there was a
manifestation of arthritis of the right hip within one year
following service is not applicable in this case.
The medical evidence of record does not show treatment for a
right hip disorder until the April 2006 VA outpatient treatment
records showing right hip pain. This was more than 28 years
following the Appellant's separation from her last period of
service. Evidence of a prolonged period without medical
complaint and the amount of time that elapsed since military
service, can be considered as evidence against the claim. See
Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
Although the Appellant currently has a right hip disorder, there
is no competent or credible lay or medical evidence of a chronic
disability during her periods of active duty for training or of a
hip injury during her period of inactive duty for training,
continuity of symptomatology after such periods of service, or
competent evidence associating a current diagnosis to service.
See Hickson, 12 Vet. App. at 253; Davidson, 581 F.3d at 1316.
Finally, as to whether the Appellant has a right hip disorder on
a secondary basis, while there is evidence that a current
disorder exists, there is no competent medical evidence that the
current right hip disorder was either caused by or is aggravated
by the service-connected coccydinia. The Appellant is not
currently service connected for any other disability. See 38
C.F.R. § 3.310(a); see also Allen, 7 Vet. App. at 439.
The Board recognizes the Appellant's contentions that she has a
right hip disorder that is manifested as a result of her periods
of service or secondary to a service-connected disability. As
noted above, the Board is within its province to weigh the
Appellant's testimony and to make a credibility determination as
to whether that evidence supports a finding of service incurrence
and continuity of symptomatology sufficient to establish service
connection. See Barr, 21 Vet. App. at 303.
To the extent that the Appellant is able to observe the onset and
continuity of right hip symptomatology, her opinion is outweighed
by the competent medical evidence of record. Simply stated, her
service treatment records (containing no competent medical
evidence of a right hip disorder) and post-service treatment
records (showing no complaints, symptoms, findings or diagnoses
associated with a right hip disorder until 2006, and no competent
medical evidence linking a right hip disorder to service or a
service-connected disability) outweigh her contentions.
Where a determinative issue involves medical causation or a
medical diagnosis, competent medical evidence is required. See
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, there is
no competent medical opinion addressing a relationship between
service and the current right hip disorder. While the Board is
sympathetic to the Appellant's claim, and she is certainly
competent to describe that which she experienced in service, any
contentions that she has a current right hip disorder that is
related to service are not competent. There is no indication
that she possesses the requisite medical knowledge or education
to render a probative opinion involving medical diagnosis or
medical causation. See Cromley v. Brown, 7 Vet. App. 376, 379
(1995); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).
Therefore, the Board finds that the preponderance of the evidence
is against the Appellant's claim for service connection for a
right hip disorder. Although the Appellant is entitled to the
benefit of the doubt where the evidence is in approximate
balance, the benefit of the doubt doctrine is inapplicable where,
as here, the preponderance of the evidence is against the claim.
See Gilbert, 1 Vet. App. at 53.
Gastritis, Ulcers, and Hemorrhoids
The Appellant asserts that she has current gastritis, ulcers, and
hemorrhoids that are etiologically related to her periods of
service. During her May 2008 hearing, she described that prior
to her periods of service, she had been having trouble with her
stomach, and that eating the wrong types of foods during service
aggravated her prior conditions. She added that the stress
associated with her duties in service also aggravated her prior
conditions. She also indicated that she was treated for
hemorrhoids during her inactive duty training in September 1976,
and that she was having trouble with hemorrhoids ever since. She
further suggested that her asserted disorders are secondary to a
back disorder.
A review of the Appellant's September 1974 enlistment report of
medical examination shows that clinical evaluation of the
abdomen, viscera, anus and rectum was normal. The associated
report of medical history shows that she indicated that she had
never had frequent indigestion; or stomach, liver, or intestinal
trouble. She did indicate having had piles or rectal disease.
The examiner clarified that she had hemorrhoids with pregnancy.
The Board notes that every Appellant shall be taken to have been
in sound condition when examined, accepted and enrolled into
service, except as to defects, infirmities or disorders noted at
the time of the examination, acceptance and enrollment, or where
clear and unmistakable evidence demonstrates that the injury or
disease existed before acceptance and enrollment and was not
aggravated by such service. 38 U.S.C.A. 1111; 38 C.F.R. §
3.304(b); see also VAOPGCPREC 3-03 and Wagner v. Principi, 370 F.
3d 1089 (Fed. Cir. 2004).
However, as noted above, presumptive periods do not apply to
active duty for training and inactive duty for training. See
Biggins, 1 Vet. App. at 477-78. Therefore, consideration of the
presumption of soundness under 38 U.S.C.A. §§ 1111 and 1131 for
such periods is not appropriate. See Hines v. Principi, 18 Vet.
App. 227 (2004); Mercado-Martinez v. West, 11 Vet. App. 415
(1998); Paulson v. Brown, 7 Vet. App. 466 (1995).
Additionally, the law and regulations governing Appellant's
benefits require the Appellant to demonstrate that a claimed
disorder was either an injury or disease manifested during active
duty for training or an injury sustained during inactive duty for
training. See 38 U.S.C.A. § 101(24). The evidence of record
does not show that the Appellant was treated for either
gastritis, ulcers, or hemorrhoids during her periods of active
duty for training. While there is evidence of treatment for
hemorrhoids in September 1976, during inactive duty for training,
this constitutes a disease process and not an injury. Therefore,
service connection is not legally merited for such disorders
incurred either during active duty for training or inactive duty
for training. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993).
Finally, as to whether the Appellant has gastritis, ulcers, or
hemorrhoids as secondary to a low back disorder, the Board notes
that the Appellant is not service-connected for a low back
disorder. In light of the award of service connection for
coccydinia as a result of this decision, secondary service
connection is plausible. However, the Appellant has not asserted
that the gastritis, ulcers, or hemorrhoids are secondary to
coccydinia, and there is no competent medical evidence of record
to suggest that the Appellant has gastritis, ulcers, or
hemorrhoids that were either caused by or are aggravated by the
service-connected coccydinia. The Appellant is not currently
service-connected for any other disability. As such, service
connection on a secondary basis is not warranted. See 38 C.F.R.
§ 3.310(a); see also Allen, 7 Vet. App. at 439.
The Board recognizes the Appellant's contentions that she has
gastritis, ulcers, and hemorrhoids that are manifested as a
result of her periods of active duty for training or inactive
duty for training. To the extent that the Appellant is able to
observe the onset and continuity of such disorders, her opinion
is outweighed by the competent medical evidence of record.
Simply stated, her service treatment records (containing no
competent medical evidence of gastritis, ulcers, or hemorrhoids
during active duty for training; and only hemorrhoids, a disease
process, during inactive duty for training ) and post-service
treatment records (showing no competent medical evidence linking
the asserted disorders to active service) outweigh the
Appellant's contentions.
While the Board is sympathetic to the Appellant's claims, and she
is certainly competent to describe that which she experienced in
service, any contentions that she has current gastritis, ulcers,
or hemorrhoids that are related to service are not competent.
There is no indication that she possesses the requisite medical
knowledge or education to render a probative opinion involving
medical diagnosis or medical causation. See Cromley, 7 Vet. App.
at 379; Espiritu, 2 Vet. App. at 495.
Although the Appellant is entitled to the benefit of the doubt
where the evidence is in approximate balance, the benefit of the
doubt doctrine is inapplicable where, as here, the preponderance
of the evidence is against the claims for service connection for
gastritis, ulcers, and hemorrhoids. See Gilbert, 1 Vet. App. at
53.
ORDER
Service connection for coccydinia is granted.
Service connection for a right hip disorder, to include as
secondary to a service-connected disability, is denied.
Service connection for gastritis, to include as secondary to a
service-connected disability, is denied.
Service connection for ulcers, to include as secondary to a
service-connected disability, is denied.
Service connection for hemorrhoids, to include as secondary to a
service-connected disability, is denied.
____________________________________________
JONATHAN B. KRAMER
Appellants Law Judge, Board of Appellants' Appeals
Department of Appellants Affairs